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Frequently Asked Questions: Wrongful Death
Frequently Asked Questions: Personal Injury
Article: Wrongful Death
When someone dies due to the negligent or wrongful acts of another, his or her surviving dependants or beneficiaries can claim monetary damages against the… » More …
When someone dies as the result of the negligence or wrongful acts of another individual, company or entity, that person's surviving family, beneficiaries or dependents may bring a "wrongful death" action against the wrongdoer for damages that they have incurred as a result of the death. The person who died is typically referred to as the "decedent."
The damages available to the survivors in a wrongful death action generally cover the loss of support and services of the decedent, lost prospect of inheritance, medical and funeral expenses, and interest from the date of the death. Damages are determined based on a number of factors, including the decedent's age, character, condition, earning capacity, life expectancy, health and intelligence. A jury can consider the decedent's earnings at the time of death and potential future earnings based on the other factors. The determination can become very complicated, and despite a jury's finding of an appropriate damages award, the judge can usually adjust it up or down for a variety of reasons. If you believe you have a wrongful death claim, be sure to hire a knowledgeable attorney with particular experience handling wrongful death cases because he or she will understand how to maximize your damages.
While a wrongful death action is an action brought by the decedent’s survivors to recover for injuries they have suffered as the result of the death, a "survival action" is brought by the decedent himself. The actual plaintiff is the personal representative of the decedent's estate, who stands in the decedent's shoes to bring the action. A survival action enables the decedent (actually, the decedent's estate) to recover for pain and suffering that the decedent may have suffered due to the defendants' negligence or wrongful conduct prior to the decedent's actual death.
Every legal cause of action is limited by a "statute of limitations" -- a time limit within which you have to file a legal claim or forfeit your right to do so. The limitations period begins to run in wrongful death cases when the plaintiff discovers or should have discovered the connection between the defendant's conduct and the decedent's death. Plaintiffs are expected to use "reasonable diligence" to discover this connection.
Yes. Even if the decedent never held a job, the contribution that person made to the family would be given a value. For example, in the wrongful death case of a stay-at-home mother who never worked, her contribution to the home and family in terms of services, guidance and nurturing, would be assigned a value for purposes of determining damages.
Yes, although the damage awards in these cases are typically not as large as the damages awards in cases where working adults or parents have died. An elderly person typically has a much shorter life expectancy and, especially if they have retired, may not have a high earning capacity. Though a child has a much longer life expectancy, their potential earning capacity is largely unknown and therefore much harder to quantify.
No. Generally, most states that recognize a wrongful death cause of action limit the pool of potential plaintiffs. Some states limit this group to the deceased's primary beneficiaries, defined as the surviving spouse and the deceased's children. Other states allow the parents of the deceased individual to bring a wrongful death claim. In addition to these individuals, some states recognize the rights of any dependent, whether closely related or not, to bring a wrongful death claim provided the person actually depended on the deceased for economic support. In those jurisdictions, it apparently makes little to no sense to allow the second cousin once removed of the deceased, who saw him once every five years at a family reunion, to recover for the loss of the deceased's future earning potential.
Some states require any recovery gained in a wrongful death action to be divided amongst the deceased's heirs at law or to be distributed to the deceased's heirs at law as it would be in any normal probate proceeding. In these situations, distant relatives may receive some "trickle down" of damages, even though they were not financially dependent upon the deceased during his life.
If more than one plaintiff is entitled to recover, all plaintiffs will share in the award. The manner in which the award is divided can be confusing and will depend upon the laws in the particular jurisdiction where the matter is brought.
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